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Tzvi Novick COV&R Summer 2010
The Jewish festival of Purim, which takes place annually around March,
commemorates the story of the book of Esther: how the Jewish community of Persia in
the 6th or 5th century BCE escaped the threat of genocide and took vengeance on its
would-be persecutors. The book is self-executing, mandating, in chapter 9, verse 22, how
it is to be celebrated, namely, with feasting and joy, and as “an occasion for sending
portions, each to his friend, and for presents to the poor.” It is this last pairing that will
serve as the starting point for our inquiry. Friends exchange portions of food, and they
give charity to the poor. The contrast between these two transfers figures the poor as
outsiders. The economy of reciprocal exchange is defined against, or in contrast with, the
economy of charity. The poor individual is she who is, per se, not a friend. This
dynamic readily translates into Girardian terms: reciprocal exchange among “friends”
corresponds to mimetic contagion, and the poor, to the scapegoat, the excluded Other.
The poor are not, of course, sent off to the wilderness to be stoned; they receive charity.
But in doing so, they assume the character of the recipient, or the acted-upon, or in short,
Esther 9:22 merely clarifies the ethical dilemma implicit in the institution of
charity generally: to aid the poor is, in a sense, to victimize them. Nor is the paradox
specific to charity. It also threatens, for example, activism in the areas of feminism and
disability. One who would draw attention to the unique problems confronted by women
or the disabled runs the risk of robbing these groups, rhetorically, of agency, even of
personhood. Consider, at a more abstract level, the analysis of pity in Aristotle’s
Nicomachean Ethics. As David Konstan observes, pity—e0/leov or oi0=ktov in
Greek—presupposes a certain distance between the pitier and the pitied: one cannot
“pity” a close friend or lover. One rather sympathizes with the beloved. “In Greek,
then,” Konstan writes, “the subject and object of pity do not merge but rather maintain
distinct emotions—that of the pitier is precisely pity—and perspectives: the pitier is
always to some extent in the situation of an observer rather than a participant in the
experience of the other, and views the suffering of the pitied from the outside, as it were.”
Today I take up the case of the poor specifically, and focus less on the problem
than on the solution. I am interested, in particular, in ways in which rabbinic literature—
a corpus produced between roughly the 2nd and the 6th century CE, and the basis of
almost all subsequent forms of Judaism—manifests concern with the poor as legal agents,
as responsible subjects rather than as objects. Now, it is possible to protect the dignity of
the poor by means other than assignation of agency. I offer two examples. The first is
from a fascinating report in the Babylonian Talmud (b. Šabb. 104a) about how children
were taught to read the letters of the Hebrew alphabet. The various parts of the letters
were assigned a homiletical significance that served as a mnemonic. You have images on
your handout of the third and fourth letters, gimel and dalet. The third letter, gimel, has a
“leg” that extends toward the fourth, dalet, because the gomel, the bestower of kindness,
pursues the dal, the poor man, to provide him charity. But why does the dalet face away
from the gimel? Because charity should be given surreptitiously, so that the poor person
is not embarrassed. This homily advocates for the dignity of the poor, but it does not
make them agents. The second example is from the Pentateuch. Notably, while
Pentateuchal legislation has much to say about the poor, it never addresses them in the
second person. They are always spoken of in the third person. Sometimes, however, the
legislator inhabits their consciousness, as it were. “If you take your neighbor’s garment
in pledge, you must return it to him before the sun sets; it is his only clothing, the sole
covering for his skin. In what else shall he sleep? Therefore, if he cries out to Me, I will
pay heed, for I am compassionate.” Thus Exodus 22:25-26. Here the ordinarily reserved
Covenant Code becomes exceedingly rhetorical. It reinforces the obligation to return the
poor person’s pledge by vividly evoking his perspective. This is the closest the
Pentateuch comes to making the poor person a speaker. But it does not come close to
making him a legal actor. The only actor here is the wealthy pledge-taker.
In focusing on legal agency, I carry forward an insight by Robert Cover, a scholar
whose work inspired and remains at the center of the law and literature movement.
Cover was fully conversant with the Jewish legal tradition, and he observed that while
law in the modern West is rights-centered, rabbinic law is instead obligation-centered.
“Indeed,” writes Cover, “to be one who acts out of obligation is the closest thing there is
to a Jewish definition of completion as a person within the community.”
How, then, does rabbinic law recognize the legal agency of the poor, and thus,
following Cover, their personhood in the fullest sense? I highlight three areas. The first
involves marshalling the charity system not to support the poor generally, but specifically
to allow them to fulfill their obligations under the law. Many such obligations involve
expenditure of money. Thus, for example, for the feast of Tabernacles, one must build a
hut and dwell in it for seven days. In the context of the morning prayer on those seven
days, one must take up a palm branch and a citron fruit. What if one cannot afford to
build the hut, or to obtain the palm branch or citron? R. Shimon bar Yoh%ai addresses
this question by comparing two verses. You have the text in source 2 on your handout; I
will summarize it. The first verse, well-known from the Decalogue, is: “Honor your
father and your mother.” (Ex 20:11) The second verse occurs in Proverbs (3:9): “Honor
the Lord from your wealth.” The Proverbs verse, in context, simply mandates that one
should convey some portion of one’s produce to God or to his temple. But R. Shimon
takes the words “honor your Lord” as a reference to service of God generally, and “from
your wealth” as a qualification thereto. One is not obligated to perform the ritual
commands—the commands directed to God, and not to other human beings, such as
dwelling in a hut, taking up the palm branch, wearing phylacteries—unless one can
afford them. But the qualifier “from your wealth” does not occur in the Decalogue, in the
context of serving parents. Therefore, concludes R. Shimon, even the indigent are
obligated to beg, or literally, to make the rounds of the doors, so that they may properly
honor their parents. On R. Shimon’s view, the law does make monetary demands of the
poor, but not many. Honoring parents, but not ritual observance: not building a
Tabernacles hut, not wearing phylacteries, etc. But other areas of the legal system
harness the institution of charity to ensure that the poor fulfill the obligations of Jewish
ritual life. Interestingly, this strategy is particularly prominent in connection with the
holiday of Passover. Thus, for example, one source in the Palestinian Talmud makes
reference to a fund for “the wheat of Passover,” i.e., wheat given to the poor so that they
would be able to bake and eat unleavened bread, matzah, on Passover. The major code of
classical rabbinic literature, the Mishnah, specifies that on Passover eve, “even a poor
person in Israel must recline while he eats, and he must be provided with no fewer than
four cups of wine, even from the daily dole.” The poor Jew, like other Jews, must recline
at the seder meal, and must consume four cups of wine. If he cannot afford the latter, he
must be provided them. We might also think here, outside the rabbinic corpus, of the
evidence from the book of Acts (21:23-24), where Paul is said to prove his faithfulness to
the law by paying the expenses associated with the purification rites of four, evidently
This, then, is the first means by which the rabbinic system reinforces the legal
agency of the poor: by directing the distribution of charity in light of their obligations
under the law. The second and not unrelated strategy that I wish to highlight today is the
creation of internal gradations, so that a given obligation may be fulfilled in different
ways, some more financially onerous and some less. The classic example of such
gradation occurs in sacrificial law, in the form of what some rabbinic texts call the
qorban oleh ve-yored, the sacrifice of the ascendant, i.e., the wealthy, and the descendant,
i.e., the poor. According to Leviticus 5, for example—you have the relevant verses on
your handout, under source 3—an individual who unknowingly incurs impurity, and then
becomes cognizant of the fact, must bring a sin or purification offering in the form of a
sheep or goat. But if he cannot afford livestock—literally, “if his hand does not reach to”
them—he may offer instead two birds. And if he cannot afford even these—literally, “if
his hand does not attain to” them—then he may make a grain offering. This body of law
thus addresses the poor as agents. Indeed, from the perspective of agency, the rhetoric of
the passage is particularly striking. Leviticus 5 does not address first the case of the
wealthy sinner, then that of the middle class sinner and then that of the poor sinner. The
three scenarios involve not three distinct individuals, but the same individual, in three
different financial circumstances. The law thereby avoids reification of class differences.
The rabbinic term qorban oleh ve-yored, the sacrifice of the ascendant and the
descendant, captures this fluidity: the rich and poor are defined not in static but in
dynamic terms. Thus the law not only affords agency to the poor, but normalizes poverty
We have to this point examined two ways in which rabbinic law attends to the
poor qua agents: first, by directing the charity system so that they can fulfill their
obligations under the law, and second, by creating graduated obligations that include less
expensive means of fulfillment. The third and final area that I will take up today is the
transformation of the poor into legal agents in the very act of receiving charity. This is
achieved in a number of ways, most radically, through the insistence that the poor are
legally obligated to accept charity, so that, in the charity transfer, the law directs not only
the giver, but the receiver. Rabbinic sources are far from unanimous on this point.
Tractate Peah, which stands at the beginning of the Mishnah, treats of the obligation to
leave a corner (peah) of one’s field unharvested, for the poor to glean. Hence it also
addresses the topic of charity more broadly. The tractate ends thus: “Anyone who is not
needy but nevertheless takes [charity], does not die in old age until he has need of
creaturely help. And anyone who is needy but does not take, does not die in old age until
he is in the position to support others from what he has. And concerning him, Scripture
says: “Blessed is he who trusts in the Lord, whose trust is in the Lord alone. He shall be
like a tree planted by waters, etc.” (Jeremiah 17:7-8) The anonymous voice of the
Mishnah advances a most stringent ideal: the poor should, ideally, refuse charity, and rely
upon God alone. But a commentator in the Palestinian Talmud, R. Ah%a, boldly rewrites
the Mishnah: it should say, rather, “Anyone who is needy but does not take is a murderer,
and it is forbidden to pity him. If he does not take compassion on himself, will he take
compassion on another?” One who refuses, despite his poverty, to take charity, manifests
cruelty toward himself, and it may therefore be presumed that he will show the same or
worse cruelty to others, even to the point of murder. On R. Ah%a’s account, there is no
principled difference between the giver and the receiver in the charity transfer: both act
under a legal obligation to take compassion on the poor, the former by offering charity,
A second way in which the receiving of charity itself becomes a manifestation of
legal agency emerges from the beginning of Mishnah tractate Shabbat, dedicated to the
laws of the Sabbath, and especially the various forms of prohibited labor. The tractate
opens with the most anomalous labor prohibition, that against carrying an object from the
public to the private domain, or the reverse. This is the final source on your handout.
“There are two takings-out on the Sabbath, which are in fact four, and there are two
takings-in on the Sabbath, which are in fact four.” Rather than parse this extremely terse
line here, let’s just move directly to the illustration that follows. “How so? The poor
person stands outside and the homeowner inside. If the poor person extends his hand
inside and places into the hand of the homeowner, or if he takes from it and brings out,
the poor person is liable and the homeowner is exempt. If the homeowner extends his
hand outside and places into the hand of the poor person, or if he takes from it and brings
in, the homeowner is liable and the poor person is exempt.” Let’s stop here. What’s
going on? The basic notion is that, to have violated the Sabbath prohibition against
transferring across domains, one must have lifted up the object in one domain, brought it
to a different domain, and caused it to come to rest in that new domain. The Mishnah’s
illustration employs two figures: a poor person, standing outside the home, in the public
domain, and the homeowner, inside his house, in a private domain. In the first case, the
poor person extends his hand, holding an object, from the outside to the inside, and drops
that thing into the homeowner’s hand. What object? Probably a receptacle, into which
the homeowner will place money or food. The poor person has violated the Sabbath
labor prohibition, because he has moved the object from the outside, and caused it to rest
on the hand of the householder, inside. Likewise, if the poor person extends his hand,
this time empty, inside the house, and then takes something, presumably food or money,
from the hand of the householder, and then the poor person retracts his hand, to the
outside, he has again done wrong, because he has lifted up the food or money inside the
house, and brought it outside. The same holds, mutatis mutandis, for the householder,
should he be the one who extends his hand outside, either to provide money or food, or to
bring the receptacle inside (into which he will then place money or food). We now
proceed further in the text: “If the poor person extends his hand inside, and the
homeowner takes from it, or if he places into it, and he takes out, they are both exempt.”
In the two cases conveyed here, there has been no violation—or at least, no actionable
violation—of the prohibition against carrying, because the two parties have divided the
action. The poor person transfers his receptacle from outside to inside, but he does not
put it in the homeowner’s hand. Rather, the homeowner takes the receptacle from the
poor person’s hand. Thus the poor person escapes punishment, because he did not
complete the transfer into the private domain, while the homeowner is of course exempt,
because he did not transfer. The same holds if the poor person extends his empty hand
into the house, but, rather than taking food or money from the householder’s hand, the
householder instead places the food or money into the poor person’s hand, and the poor
person retracts his hand. Again, the poor person has carried, this time from outside to
inside, but he is not liable, because it was the householder, not he, who originally placed
the food or money in the poor person’s hand on the inside, and thus started it on its
journey. We may omit discussion of the last line of the Mishnah, which plays out the
same “cooperative carrying” scenario in reverse.
A complex case, a striking hypothetical. This is how the Mishnah chooses to
introduce the Sabbath, and this choice may reflect on its view of the Sabbath’s nature.
But more relevant, for our immediate purposes, is what the Mishnah tells us, through
these illustrative permutations, about the act of charity. At a minimum, it conveys that
the act of charity is fraught, both for the giver and the receiver, with legal implications.
Both parties must take care that it is done properly; the penalty for intentional violation of
the Sabbath is death, or at a minimum lashes, and even unintentional violation renders
one liable for a sin-offering. But the Mishnah’s rhetoric is as interesting as its substance.
The Mishnah creates a perfect, almost hypnotic symmetry between the poor person and
the homeowner. Each extends his hand, each retracts; each places, each takes. The
householder and the poor person are equal agents in the charity transfer. Note, moreover,
that all objects have been stripped from the picture: we must infer a receptacle, food,
money, but the Mishnah says nothing of these things, even though there is no carrying at
all without them. Suppressing the objects allows the Mishnah to enhance symmetry—it
need not differentiate between the receptacle in one case, and the food or money in the
other—but it also has the effect of highlighting the hand. The Mishnah is interested only
in the hand. The hand is the metonym, in the Bible and in post-biblical literature, as in
many other languages and cultures, for action. It is also the metonym for acquisition of
wealth; consider Leviticus 5, which we analyzed earlier, where poverty is characterized
in terms of a hand that does not reach or attain to livestock or birds. The poor person and
the householder here manifest, in the charity transfer, equally agentive hands.
The Mishnah’s symmetry owes much to its legal, and especially its scholastic
character. It abstracts, it spins out hypotheticals, it considers all permutations. But this—
the symmetry born of law—is not in itself insignificant. I romanticize law but do not
altogether fictionalize it when I say that the legal pushes toward equivalence where the
social would reify difference. When this general feature of legal thought intersects with
the specific obligation-centeredness of rabbinic legal culture, agency tends naturally to
multiply. I would suggest, more specifically, that this last text points us toward a
different “anatomy of obligation,” so to speak, than the one famously advanced by
Emmanuel Levinas. For Levinas, obligation originates in the face of the Other; indeed,
the Other’s face is the origin, in a certain sense, of one’s very Self. Now, the generative
power of the face of the Other is a topic that probably ought not to be broached in the
final minutes of a talk, especially a talk that began in 5th century Persia, but let me
venture only the following possibility. Martin Buber offers this criticism of Levinas’
ethics: “[One who does not have access to the other] may clothe and feed the hungry all
day and it will remain difficult for him to say a true Thou. If all were well clothed and
well nourished, then the real ethical problem would become wholly visible for the first
time.” I take Buber as claiming that, to have ethics become manifest most fundamentally
in obligation toward the Other is to miss the dialogical component of the ethical
relationship, which depends on a mutuality of agency. I am sympathetic to Buber’s
criticism, but I don’t think it ultimately requires us to bracket out obligation from the
ethical encounter. We might instead begin by modifying our anthropology of obligation.
The face—a metaphor, for Levinas, but not only a metaphor—is in essence static. Is it
really the vision of the face, of the Other as image, that generates obligation, and
selfhood, or does the generative power of the Other rather lie in the Other’s hand, in the
Other as actor? Image, or actor? Face, or hand? Leaving you with this question, I will
summarize, more prosaically, the three contexts wherein classical rabbinic literature
recognizes the legal agency of the poor: in directing the charity system so that it allows
the poor to fulfill their legal obligations, in providing graduated systems of obligation that
incorporate less expensive modes of fulfillment; and in loading the act of receiving
charity itself with the substance and rhetoric of agency.

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